How to make a dispute disappear? Lessons in illusionism by the International Court of Justice in the Silala case

The “Dispute over the Status and Use of the Waters of the Silala (Chile/Bolivia)” was a case that dealt with the very scope of the law of international watercourses and its customary rules, as neither of the parties have ratified the Convention on the Law of the Non-navigational Uses of International Watercourses (UNWC). It aimed to ascertain whether customary international law was applicable to the Silala river, given the artificial elements involved in its transboundary flow form Bolivia to Chile, as well as to determine the respective implications to the management of its waters. The judgement of the International Court of Justice (ICJ) was rendered last week, in December 1st, 2022. In light of this recent decision, this post exhibits the limitations of the reasoning of the ICJ in its assessment of the case and argues that its omissions in core issues of the dispute perpetuates the current legal and political uncertainty that exists in the bilateral relations of Chile and Bolivia in relation to the Silala river.

Given this context, there were high expectations for the settlement of the dispute by International Court of Justice (ICJ). After all, the case could have significant impacts for the bilateral relations between Chile and Bolivia, as well as influence the interpretation and development of international water law as a whole. Nonetheless, the ICJ ended up concluding that the majority of the parties` pleadings had no longer an object due to the convergence in the parties` positions.[i] The decision of the ICJ is mainly based on the statements issued by the parties during the course of the proceedings, as it presumes that these declarations were made in good faith.

This post firstly examines the ICJ`s findings in relation to Chile`s pleadings, which address the recognition of the Silala river as an international watercourse and the application of the corresponding rules in customary international law, namely the principle of equitable and reasonable utilization, the principle of prevention and the obligations to notify and consult. Then, the post analyses Bolivia`s counterclaims, that deal with the sovereignty over the artificial channels and to the resulting flow, as well as to the need to conclude an agreement to regulate the delivery of the “enhanced flow” to Chile. Finally, the post concludes with a critical overview of the judgment in view of the bilateral relations between Chile and Boliva.

On the issue of the status of the Silala river, Chile sustained that it is an international watercourse and is governed by international law, whilst Bolivia initially denied the applicability of customary international law to the artificial portion of Silala’s flow. Nevertheless, the ICJ noted an evolution in the Bolivian position during the proceedings to recognize the entirety of the Silala river as an international watercourse, although it contested the customary nature of the scope of the UNWC and argued for the relevance of the unique characteristics of the resource in the application of customary international law (para. 57). Despite the specificities in the positions of the parties, the ICJ noted that the different comprehension of customary international law did change the fact that Bolivia has unequivocally confirmed Silala`s nature as an international watercourse. The ICJ found that Chile`s pleading “no longer has any object and that, therefore, the Court is not called upon to give a decision thereon” (para. 59).

Concerning the equitable and reasonable utilization of the Silala river, the ICJ established that the Bolivian position evolved in that same direction. It started with the exclusive consideration of the natural flow and changed to encompass a holistic application of international water law, including both the “naturally flowing” and “artificially enhanced” parts of the Silala river. In light of this convergence with regard to the utilization of the river, the ICJ declared that the dispute had lost its object and that it was not its role to address future and hypothetical uses of these waters (para. 64). Even in relation to Chile`s pleading for the declaration that its current use of the Silala river was consistent with the principle of equitable and reasonable utilization, the ICJ also deemed that the object of the pleading was lost by broadly stating that the parties agree on the application of this principle and that they do not oppose each other’s rights to an equitable and reasonable share of Silala`s waters (para. 75).

On one hand, this position could represent a deference of the ICJ in relation to the parties` prominence in the establishment of what could constitute an equitable and reasonable allocation. In this sense, it is likely that the ICJ will refrain from imposing its perception of equity and reasonableness if the parties themselves are able to reach a consensus on the issue. However, in this specific case, there was doubt in the application of the principle of equitable and reasonable utilization and the ICJ refrained to dwell on the matter.

Whatever reason the ICJ may have had for this omission, the conflict over the utilization of the Silala is not hypothetical, otherwise Chile would not seek a validation of its interpretation of the principle of equitable and reasonable utilization in the current use the shared waters. It is true that the principle of equitable and reasonable utilization is not meant to be evaluated disjointly from the concrete case, but the ICJ failed to present minimum parameters and directives that it considered applicable in the specific context. That is, even if it did not seem fit to make a complete assessment of the principle in the relations between the parties, it could have offered some guidance as to its understanding of the principle and its direct implications for the allocation of Silala’s waters.  It should be noted that, in disputes relating to maritime delimitation, such as in the Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada/United States of America), the ICJ has already presented considerations of equity in the application of international law, then it would not have been the first time that such parameters were discussed in its jurisprudence.

Source: ICJ Judgment 2022

The same view was adopted in relation to the principle of prevention, as both parties agreed on its application to the Silala river (para. 86). The ICJ made a briefly discussed the threshold of the customary rule of the prevention of transboundary harm, but ultimately decided that the point did not constitute a disagreement between the parties (para. 85). In this case, as the parties did dispute the compliance with this customary rule, only its applicability, there was effectively no object left for the ICJ’s appraisal.

The Bolivian counterclaims were also dismissed due to the lack of dispute between the parties. The ICJ noted that Chile did not contest Bolivia`s sovereign rights to the channels and to the restoration of the wetlands (paras. 146 and 154). As for the conclusion of potential agreement for the compensation of Bolivia for Chile`s continued utilization of the “artificially enhanced flow” of the Silala river, the ICJ reinforced its position of not addressing hypothetical situations (para. 161).

Surprisingly, one significant contribution on the merits of is the statement that the obligations to notify and consult, as established by the UNWC, were not reflected in customary international law and, therefore, were not applicable to the case (paras. 112 and 117). Mainly, Articles 11 and 12 of the UNWC require States to, respectively, to exchange information and to provide a timely notification before the implementation of measures that may cause “significant adverse effects” on the watercourse. The ICJ preferred to discuss these obligations in the light of its case law, which establishes a higher threshold for the incidence of the obligations to notify and consult than those prescribed by the UNWC. As noted by the ICJ, the threshold of “significant adverse effects”, adopted by the UNWC, is lower than the parameter of “significant harm”, which is enshrined in the case law of the ICJ (para. 115).  As such, the ICJ declared that “a riparian State is required to notify and consult the other riparian States with regard to any planned activity that poses a risk of significant transboundary harm” (para 118). The ICJ ruled that Chile failed to demonstrate the risk of significant harm in the measures taken by Bolivia, which, in turn, led the Court to declare that it did not find a breach of obligation to notify and consult under customary international law (para. 127).

Some judges were reluctant with the positions and solutions given by the majority in the case. For instance, the Declaration of Judge Tomka asserts that the ICJ “decides almost nothing” and that it “remains to be seen what useful role, if any, this Judgment will play in the relations between Chile and Bolivia”. Additionally, the Declaration of Judge Charlesworth argues that it was necessary for the ICJ to issue a declaratory judgement recording the parties` agreement, as it would provide more legal certainty to the parties and commit them to their positions. Finally, the Separate Opinion of Judge ad hoc Simma states that, even though the convergence of the parties during the proceedings was evident, it was difficult to ascertain what exactly they agreed about. Judge Simma also declared his perplexity over the lack of record of the parties` agreement in the operative clauses of the judgement.  

To sum up, the case was decided mainly by the parties during the course of the proceedings. Even in relation to the issues the parties did not agree upon, the ICJ adopted a restrictive approach to its judicial function and refrained to issue considerations to address them, either for being hypothetical or for not deeming the disagreements relevant for the decision on the pleadings.

In light of these specificities, one cannot help to wonder what role the Court played in the settlement of the dispute. If the parties were as synchronized as the ICJ seems to interpret, it is odd that the case was not discontinued or that they did not draft an agreement to settle the matter unequivocally.

Instead, the issues that remained open in the judgement were fatal for the previous attempts of negotiation that aimed to solve the conflict on the use of Silala`s waters and there is no reason to believe that they will fade spontaneously. Indeed, the dispute arose after failed attempts to solve the dispute in a bilateral agenda and some of the main points of rupture were discarded by the ICJ as if they were not essential to the settlement of the case. In fact, two draft agreements were drawn up before the institution of the case and one was proposed during the proceedings, which, however, ended up being unfruitful.

 If the parties still do not manage to reach a consensus in their bilateral agenda due to these disagreements, the dispute will persist, along with legal and political uncertainty. It is not clear whether the Court’s quest for parties’ agreements during the proceedings will suffice to eliminate the tensions between the two States.

In many illusionist tricks, the apparent disappearance of an object does not mean that it is not there. Analogically, the formal declaration of the ICJ that a dispute no longer exists does not mean that the issues it refused to address will magically cease to exist.

There is, however, room for hope. The fact that the parties are converging in their positions demonstrates that there may be yet possibilities for a consensual solution in relation to the management of the Silala`s waters. The increasing dialogue is essential for the development of effective mechanisms of transboundary cooperation and the adoption of an agreement to regulate the management of the Silala river may provide mutual and long-term benefits that even a detailed and exhaustive judgement of the ICJ could hardly achieve.

[i] This was the case with Chile`s submissions (a), (b), (c) and (d), as well as Bolivia`s first and second counterclaims, as can be seen, respectively, in para. 59, 65, 76, 86, 147 and 155. Bolivia`s third counterclaim was rejected on the grounds of resting on a hypothetical situation (para. 161). Thus, the ICJ only rendered a decision on the merits of Chile`s submission (e), which was also rejected (para. 128).

  • Amael Notini Moreira Bahia holds a LLM in Public International Law at UFMG. Researcher at the International Courts and Tribunals Research Group CNPq/UFMG. Legal Coordinator of Observatório Nacional dos Direitos à Água e ao Saneamento (ONDAS).


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